Saturday, June 30, 2007

 

The Lord says: "Revenge is Mine." What do B.C. Supreme Court Judges say?

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Someone who knows about these things said, "Robin's comments today sound so very Canadian." Therefore, it seems fitting that we honour Canada's 140th anniversary by presenting the thoughts of the man who fought so successfully to get Canadian Studies into Canadian schools: Professor Robin Mathews ...



THE LORD SAYS: "REVENGE IS MINE." WHAT DO B.C. SUPREME COURT JUDGES SAY?

Robin Mathews

The mills of the gods - and of the B.C. Supreme Court judges - grind exceedingly slow. In the case of B.C. Supreme Court judges, however, they can speed up wonderfully. If demonstrators are trying to save B.C. forests, the B.C. Supreme Court can act with lightning speed to lower its fist on anyone who offends a big Yankee corporation or Gordon Campbell. Or if a huge private corporation (Alcan) wants - with (premier) Gordon Campbell's and (attorney general) Wally Oppal's assistance - to grab the Nechako River from British Columbians, the Supreme Court of B.C. can polish off the opposition in no time. It can do it, moreover, with a decision that has more holes in it than the B.C. Ferries' Queen of the North presently lying on the ocean floor of (or near) Wright Sound.

When Gordon Campbell and/or big corporations want something, the B.C. Supreme Court can give new meaning to the phrase "greased lightning".

But what if an investigation involves (and possibly implicates) Gordon Campbell, cabinet ministers, "friends" of cabinet ministers, highly placed B.C. politicos, and - say - the dirty sale of an asset owned by the people of B.C. Then it's a different story with the Supreme Court of B.C.

Then the Supreme Court of B.C. becomes positively sluggish - and more than sluggish. Then it becomes secretive, obstructive, and - as I've experienced it - even rude and dismissive. What possibly could be the reason, you ask? Could it be that some Supreme Court of B.C. judges consider themselves personal employees, "vassals in servitude" to Gordon Campbell? Surely not!

A mark of the BC Rail scandal - out of which have come the Basi, Virk, and Basi charges of criminal fraud and breach of trust - has been intolerable secrecy on the part of B.C. Supreme Court judges.

To go ahead of myself briefly, I have tried to break the intolerable (and I believe grossly unconstitutional) secrecy which involves Supreme Court judge decision-making about information on public record and their servitude to a nearly universal gag-order placed on all documents and records in criminal proceedings - on all materials which are, in fact, on public record but denied to the public. On three occasions Chief Justice Donald Brenner has apparently refused to acknowledge a request that he review the odious gag order and write a letter to me about it that I can make public.

Associate Chief Justice Patrick Dohm is author of the odious gag order called "The Criminal Justice Practice Direction (Consolidated)". Since Chief Justice Brenner refuses even to acknowledge a direct request for review of the gag order, I have formally (with copies to Patrick Dohm) asked for a copy of it to examine. Twice. So far. I will go on asking for a copy, and asking, and asking.

Associate Chief Justice Patrick Dohm signed the warrants to search, issued on December 24, 2003, covering a number of people's offices and residences and covering the - now famous - "raids" upon legislature offices. When a search (authorized by a "warrant") has been completed, the search warrant becomes a public property. It is placed on "public record", available to all. Patrick Dohm, however, "sealed" the search warrants in question for nine months, and then - we are told - he released them.

He did not release them.

He released a document with 58 pages completely blanked out, 24 partially blanked out, and 40 pages left untouched (by my count). The search warrants were signed on December 24, 2003. The charges against Basi, Virk, and Basi were laid in December of 2004. Going on towards three years after the charges were laid, the search warrants have not been released. Of the 40 pages untouched 37 (by my count) deal with Basi, Virk, and Basi who were not charged when the document was released in September 2004, and who - by the way - are still "innocent" men.

Questions must arise. (1) If more than half the document can never be placed on public record, were the activities permitted the RCMP illicit, in fact? Or (2) Is Patrick Dohm protecting people from embarrassment, people who were fairly searched, who were involved - in some way, legal or illegal - with the dirty BC Rail scandal and now want to be protected from reasonable public knowledge carried in the search warrants? OR (3) The very worst possibility - which cannot under the circumstances of secrecy be discounted: would readers of the search warrant document reasonably suspect some people named in blanked out passages of criminal activity?

Whatever the case, a pall of doubt and suspicion hangs over the Basi, Virk, and Basi matter as a result of the, in fact, failure to release the search warrants authorized by Associate Chief Justice Patrick Dohm on December 24, 2003.

The doubts expressed are not strange nor are they extreme. That is because law, experience, and judicial practice have insisted that on the completion of search the warrants become public property. To violate that practice is to invite reasonable suspicion. The pall hangs over the courtroom where Madam Justice Elizabeth Bennett presides. She was seized with the Basi, Virk, and Basi matter and has, obviously, agreed to the refusal, in fact, to place the search warrants on public record.

Madam Justice Bennett has excited a number of questions. All of them, however uncomfortable, are questions that may fairly be asked - and should be asked. They are NOT asked by the large, private, for-profit media corporations like CanWest or the Globe and Mail or B.C.'s TV stations. Have those organizations agreed to keep quiet? Have they agreed the wholesale denial of documents and day to day transcripts is fine with them?

Over the months I have asked if Madam Justice Bennett has been seriously lax in ordering the release of evidence needed by the Defence. I have asked if there is collusion among the Crown, the RCMP, and the Gordon Campbell government - with a too pacific court looking on. I believe that in a scandal of the dimensions of the BC Rail scandal the judge may have to intervene in order to serve justice and the people of B.C. She might, in that regard, have sped up the disclosure process and suggested and then responded positively to requests to cross-examine "delinquent" RCMP officers, present or former cabinet ministers, political operatives who apparently used "influence" in the scandal. She has not done those things, and, indeed, has nixed a Defence counsel request to cross-examine the Special Crown Prosecutor, William Berardino, and the lawyer for so-called Star Witness Erik Bornmann on the absence of any documents relating to "deals" made with Mr. Bornmann concerning his witness status.

I have repeatedly asked Madam Justice Bennett to release documents on public record and day to day transcripts of open court hearings. I have been refused. I believe I have been misled, obstructed, and manipulated. Finally, I have to ask the reader: have I been misinformed, deliberately misled - apparently purposefully - by Madam Justice Bennett through the court officer, H. L. McBride, who responds for the judge?

Before describing the precise situation, I must explain. I have refused to accept the unstated and, in some cases, unconscious pact made among the court, the courtiers, the Court Party, (and the courtesans) - the judge, the lawyers, the media/press, etc. to "go along", to stop short of embarrassing questions, to be uncritical. I have refused to be silent about possible faults in Madam Justice Bennett. I have refused to be silent about the outrageous gag order controlling all information on public record which she supports and upholds from day to day. And I have refused to be silent about the existence of the possibly "really guilty" people in the BC Rail Scandal.

My requests for release of materials under the gag order, and the responses to the requests have now reached the ridiculous stage. I wrote to ask for documents and was told by H. L. McBride that I must write to the Chief Justice or to Madam Justice Bennett and request documents. I wrote to both. The Chief Justice informed me (through H. L. McBride) that Justice Bennett was seized with the matter and she is in control and he can say or do nothing. H.L. McBride, it seems, didn't know what she was talking about.

Justice Bennett, through McBride, informed me, after I had written Justice Bennett as I was advised to do, that I had to fill in Form One, distribute it to all parties, and appear in order to argue for release of materials. That was NOT what McBride first wrote, and I believe she added more hoops to jump through in order to get rid of me. I wrote as much to Madam Justice Bennett.

The wonderful H. L. McBride replied that she had not changed her story (!). She refused even to refer to the Chief Justice. Then (June 20, 2007) after I replied, H.L. McBride wrote and insisted upon the Form One procedure. She was adamant. There was a process to go through and I wasn't going to be specially exempted. Let us see what she wrote:

"To reiterate, if you wish to obtain access to the court file materials in this proceeding, you must make formal application to Madam Justice Bennett pursuant to the Supreme Court Criminal Rules. The Supreme Court Criminal Rules require, among other things, that formal notice be served on all the parties to this proceeding and that the application be spoke to [H.L. McBride means "spoken to".] The Supreme Court Criminal Rules are available on the Court's website."

Was Ms. McBride, in fact, saying: "if the court disapproves of you and if the court wishes to take revenge, you will be shown what a merry dance you can be set to dance?" Except I won't dance. I will simply go on telling Canadians what, as a relatively ordinary Canadian observing the court proceedings, I have learned and what I have become increasingly convinced I see as active bias, dubious process, intolerable suppression of materials on public record, contempt for ordinary Canadians, and, alas, reason for an awakening suspicion of corruption deeply seated in the Supreme Court of British Columbia. I won't dance, but I will report my observations freely, as I may do in a free society.

What makes me wonder if I have been deliberately misinformed and misled?

I wrote to Madam Justice Elizabeth Bennett on June 7 rejecting the bureaucratic dance H.L. McBride had newly set up - as unnecessary and obstructive, because my earlier request was perfectly clear. I suggested I was being purposefully obstructed. The reply to that is, in part, quoted above - an insistence that there are formal procedures to follow.

Not until a few days later did I learn that - almost at the same time as the little charade about formal process was going on - "court file materials in this proceeding" were released without "formal application", without being "pursuant to the Supreme Court Criminal Rules". Material was released, almost casually, without "formal notice being served on all parties to this proceeding". In fact, materials were released without any of the ridiculous mumbo-jumbo being forced upon me.

What happened?

Quite simple. Apparently, - as far as I am able to tell - one of the representatives of the Globe and Mail - a large, private, for-profit corporation - had a chat with a Defence Counsel member, asking for (in Court File No. 23299) the Notice of Application For Production of Records In The Possession Of The Province of British Columbia, stamped as received by Criminal Registry, June 4, 2007.

It was a breeze.

A few words passed in the courtroom. Nods and smiles. And on the informal request by the Globe and Mail Madam Justice Elizabeth Bennett released to it, almost then and there, the Notice of Application. Of course, it had to be generally released so that no show of favouritism would appear. Of course.

Does the reader think I was misinformed, misled about how to get materials? Does the reader think that I alone am forced for some special reason through the complicated, "formal" procedure to get "court file materials in this proceeding"? Could there be something distinctly fishy here?

Of course not. All such suspicions should be dismissed. The court can't show favouritism, under any condition, we know that. If it does, all of its activities come under suspicion. The court wasn't favouring the Globe and Mail, a large, for-profit, private corporation. Of course not. We all know that if I had casually asked to have the Notice of Application by the Defence (June 4) released, Madam Justice Bennett would have smiled broadly, shrugged, and said: "What the hell. I don't see anyone protesting. Does anyone protest? Okay, why not. Sure." And in the twinkling of an eye I would have had that material from the "court file materials in this proceeding" in the same way that the Globe and Mail got it. Of course. (Though that doesn't explain why I can't get the materials I ask for.)

I want to emphasize the point that there is no favouritism in the Supreme Court of British Columbia, and no judge acts (or judges there ever act) out of a desire for revenge. We all know that.

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Comments:
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Just in case you haven't stopped in at Tyee lately, this quote is taken from the Black/Asper story there:

Thanks to the openness of the U.S. justice system, much of Black's back room dealings with the late Izzy Asper have been uploaded for all to see. In contrast to the Canadian courts, where getting a look at an exhibit at trial usually requires retaining a lawyer to argue for its release, the U.S. Department of Justice has posted on its website documents entered into evidence in the case of U.S. v. Black, et al.

Thus we can read how, after doing their $3.2 billion deal in July 2000 for Southam Newspapers, Canada's oldest and largest chain of dailies, Black and Asper set their sights on the next largest, Thomson Newspapers.

I wonder if Robin will have seen the line about documents, openness and the courts. Not that the American system is close to perfect (ref Scooter Libby clemency) either of course.

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